fair work commission

In a major decision, the Full Bench of the Federal Court has held that a worker expressly engaged as a casual was entitled to annual leave and other entitlements upon termination.

In our view, in doing so the Court has cast doubt on decades of accepted industrial practices and the decision threatens to undermine casual employment relationships around the country.

The Facts

In WorkPac Pty Ltd v Skene:

the employee was employed by a labour-hire company in the mining industry as a dump-truck operator and the employment was governed by the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (Agreement)

although the letter of employment stated he was a casual, he was subject to a continuous 7 day ‘fly-in, fly-out’ pre-set roster arrangement, worked regular and systematic shifts, stayed in accommodation at/near the mine and was expected to attend each shift

an ‘all-in flat rate’ of pay was payable for each hour of work although WorkPac did not specify what entitlements this flat rate of pay purported to absorb

In a decision that upends a decade of legal precedent, the Full Bench of the Fair Work Commission has opened the door for employees engaged under fixed or specified-term contracts to bring unfair dismissal claims at the end of their contract term.

It has long been accepted that:

employers are free to structure their affairs, including the contracts they offer to employees, in the way that they think best suits their interests

this freedom has led to the proliferation of fixed-term or maximum-term contracts

where these types of employment agreements expire at the conclusion of their term, employees are not eligible to bring unfair dismissal claims because the expiry of the agreement does not result in a ‘termination of employment at the employer’s initiative’

The Fair Work Commission has found that a vulnerable aged care worker was unfairly dismissed due to her employer, Bupa Aged Care, acted unconscionably. Bupa were criticized for their “unprofessional, discourteous and unfair” disciplinary process.

Employment Law – Facts

In essence:

Shahin Tavassoli, a refugee from Iran with limited English skills, was employed by Bupa

On the weekend of 13-14 November 2016, a colleague secretly recorded her on his mobile singing “I can do anything better than you” following a heated exchange between a resident and a nurse and also allegedly laughing and joking at the death of two residents

A second video, recorded the following day, allegedly captured her sitting in the TV room ignoring resident’s buzzers

These videos were shown to David Brice, acting general manager of Bupa Mosman a Miriam Lyman, care manger

On 16 November, Tavassoli attended work training. However, at 2pm Brice escorted her from the premises, only telling her that there had been serious allegations made against her and he was waiting for more documentation in a few hours.

The Fair Work Commission has compensated an employee who was unfairly dismissed because her employer failed to comply with their consultation obligations under the relevant award.

Employment Law – Facts

In essence:

Carer’s that Care (CTC) terminated Ms Morris’ employment because it could not afford to pay her full-time wage after losing a significant number of clients

Ms Morris argued that she hadn’t received any warnings but was only told that CTC was shutting down and staff would be made redundant

She also argued that she was not provided with the opportunity to respond, because the managing director refused to have any discussions with Morris

Morris lodged an application for unfair dismissal

Employment Law – The Relevant Law

Section 389 of the Fair Work Act (‘The Act’) states that a genuine redundancy occurs when an employee’s position is no longer required and the employer has complied with any obligations under the modern award or enterprise agreement

The Fair Work Commission has held that a company’s failure to provide notice to a finance manager rendered her termination unfair. However in an interesting turn of events, declined to award compensation because she “deliberately deceived” them of her qualifications.

Employment Law – Facts

In essence:

In her application for an accountancy role at Spectrum Community Focus Limited, the manager claimed that her qualifications included “ASA-CPA Australia” (an associate member, who had six years to complete training to become a full member of the professional body for accountants) and had an MBA

She later became the finance manager, reporting directly to the CEO and board of directors and responsible for preparing financial reports

In November in the lead up to her dismissal, she made several blunders including failing to file the company’s return to the Australian Charities and Not-for-profits Commission (ACNC) by the required time frame. She also made several mistakes with the 2015 reports, including not reporting an apparent $600,000 loss to the managing director

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